Wednesday, December 31, 2008

Defining The Argument Down

by digby

A couple of weeks a go I wrote a long piece about "legal scholar" Stuart Taylor's arguments against prosecutions against the war crimes regime called, Don't Defend It, Don't mend It, Just End It and speculated that his thoughts on the matter would be the default position of the villagers. After all, everyone in the village agrees that there should be no pursuit of those who tortured, spied and used the constitution as toilet paper, for essentially the same reasons: the right wing will tear the country apart if anything is done about this and those who perpetrated the crime of torture have already suffered enough by being embarrassed at being found out. They all make the same absurd argument about lawyers' advice being the determining factor as to whether a law was broken.

But after reading Ruth Marcus' somnambulant "let's not play the blame game" piece today in the Washington Post, which validates my thesis in nearly every respect, I realize that I was wrong in one fundamental way: there will actually be two versions of the villager talking points which will define the contours of the "argument:" those who lean right and say that the new president should continue to torture, kidnap, illegally spy on and imprison innocent people and those reasonable "centrists" like Marcus who say he probably shouldn't unless he absolutely has to. (The left, needless to say, are a bunch of shrieking extremists who insist that these things are so wrong they should be repudiated and punished.)

The frame shifts, the goalposts move, the argument narrows and the conservatives get away with murder. And yet Marcus, like a dewy eyed debutante writes something like this with a straight face:

Second, the looming threat of criminal sanctions did not do much to deter the actions of Bush administration officials. "The Terror Presidency," former Justice Department official Jack Goldsmith's account of the legal battles within the administration over torture and wiretapping, is replete with accounts of how officials proceeded despite their omnipresent concerns about legal jeopardy.

"In my two years in the government, I witnessed top officials and bureaucrats in the White House and throughout the administration openly worrying that investigators acting with the benefit of hindsight in a different political environment would impose criminal penalties on heat-of-battle judgment calls," Goldsmith writes.

Well, they certainly won't spend any time worrying about that in the future will they? (And I'm pretty sure that those who had any knowledge of how Washington works understood very well that the likelihood of them ever being held liable for these crimes was nil.)

So, it has already been agreed upon by all sides (except those annoying DFH's) that these poor torturers have suffered enough what with all their fretting about being punished for their misdeeds and embarrassment at having been publicly revealed to be sadists and all. And everyone knows that the wingnuts are holding a gun to the country's collective head threatening to go postal if anyone is held liable for these crimes, so we'd better not rock that boat or all hell will break loose. The only argument left is whether or not the new president will commit the same crimes.

The danger in this, aside from the implications for a future lawless administration, is that the "compromise" position in such an argument is to do exactly what Stuart Taylor suggests be done with the torture and spying regime: mend it don't end it. And this is one issue where there is absolutely no room for compromise --- the world is watching and our national security depends upon Obama completely and without reservations ending these programs, closing Guantanamo, following the Geneva conventions and standing firm against any kind of lawless and unproductive anti-terrorism measures. Investigating and exposing the full extent of what went on is also, in my view, a necessity if we are to restore any kind of credibility around the world. If he doesn't do these things, this moment will be as squandered as the world's sympathy was squandered by Bush after 9/11. The world will be unlikely to give us a third chance at getting this right.